Politicizing the Regulatory Process

OIRA's Meetings with Industry Skew Its Review of Regulations

The White House Office of Information and Regulatory Affairs (OIRA) has been a refuge for special interests seeking to avoid regulation since the early days of the Reagan Administration. But candidate Barack Obama was clear about his intention to free government from the grip of special interests, make governance transparent, and use the regulatory process to enforce – at last – the nation’s laws protecting health, safety, and the environment.

Nearly three years into the Obama Administration, it has become clear that those laudable objectives are being thwarted: The regulatory process is every bit as political as it was during the Bush years, while being no more transparent; and vigorous enforcement of the nation’s health, safety, and environmental laws has suffered as a result.

Those are among the principal findings of CPR’s detailed study of the work of OIRA, the obscure office that rides herd over the regulatory process from within the White House. According to Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety and the Environment, by CPR President Rena Steinzor and Policy Analysts James Goodwin and Michael Patoka, President Obama’s OIRA, under Administrator Cass Sunstein, has pursued an “all you can meet” policy that industry and other special interests are eagerly exploiting. As a result, special interest representatives’ meetings with OIRA’s economists and White House political appointees vastly outnumber OIRA’s meetings with public interest organizations.

The meetings with special interests are remarkable for several reasons. The statutes under which the agencies regulate delegate authority not to the White House, and certainly not to OIRA, but to the departments and agencies themselves, because that is where the substantive expertise resides. OIRA imposes cost-benefit requirements on the agencies, often in contradiction of those same laws, but does not restrict its review of proposed regulations to that analysis. Instead it frequently substitutes its judgment about the substance of regulations for the judgment of the agencies themselves, almost invariably with the result of diluting regulatory safeguards. And OIRA forms that judgment after holding court for special interests, all of which have already had ample opportunity to participate in public-comment periods during the agencies’ development of regulations. According to the report:

Industry dominates the OIRA meetings process. OIRA makes no effort to balance its meeting schedule by hearing from even a rough equivalence of organizations supporting protective regulations. In the 10 years studied in the report, OIRA hosted 1,080 meetings, with 5,759 appearances by outside participants. Sixty-five percent of the participants represented regulated industry interests; 12 percent of participants appeared on behalf of public interest groups.

OIRA meetings correlate with changes to rules. Rules that were the subject of meetings were 29 percent more likely to be changed than those that were not. OIRA does not disclose its changes, but the evidence is that OIRA functions as a one-way ratchet, exclusively weakening agency rules.

The EPA is OIRA’s favorite punching bag. While EPA rules made up only 11 percent of all reviews by OIRA, 41 percent of all OIRA meetings targeted EPA rules. EPA rules were changed at a significantly higher rate—84 percent—than those of other agencies—65 percent—over the whole ten-year period.

OIRA ignores public disclosure requirements. OIRA is required by the same executive order to make available “all documents exchanged between OIRA and the agency during the review by OIRA,” and agencies are required to “identify for the public those changes in the regulatory action that were made at the suggestion or recommendation of OIRA.” Such requirements are routinely ignored.